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					Developments of the EU
asylum law in the context
of Financial Crisis
14 September 2009, Torun
by dr. Laurynas Biekša
Mykolas Romeris University, Lithuania
Asylum: international legal obligations vs. economic/politic reasons
                  Lithuania/Poland: UNHCR concerned on Chechen refusals
                               Briefing Notes, 15 November 2002
    This is a summary of what was said by UNHCR spokesperson Ron Redmond – to whom
    quoted text may be attributed – at the press briefing, on 15 November 2002, at the Palais
    des Nations in Geneva.
    UNHCR is concerned about reports of Chechen asylum seekers being barred from entering
    Lithuania and Poland following the recent Chechen terrorist attack in Moscow. Last week,
    Lithuanian border guards refused entry to 26 Chechens and returned them to Belarus. At
    least 17 of them were detained by Belarus authorities and subsequently put on a train bound
    for Moscow. Their current whereabouts are unknown. In neighbouring Poland, charity
    groups have reported dozens of cases of Chechens being turned away from the country's
    eastern border since the October 23 terrorist attack on a Moscow theatre by Chechen
    separatists.
    The UNHCR bureau in Warsaw and our office in Stockholm, which handles the Nordic and
    the Baltic States, are seeking urgent clarification from Polish and Lithuanian authorities.
    While we understand legitimate security concerns following the Moscow attack, we are
    nevertheless concerned that a blanket refusal to allow in Chechen asylum seekers could put
    many people at risk.
    Poland has hosted a large number of asylum seekers from Chechnya. This year alone, 1,638
    Russian Federation nationals – virtually all of them Chechens – had asked for asylum there.
    Poland and Lithuania are both signatories of the 1951 Refugee Convention and candidates
    for membership in the European Union. A policy of refusing to allow in Chechen asylum
    seekers would constitute a violation of the two countries' national laws and international
    commitments.
                                                                                              2
Identification of economic reasons

  Recognition rate - Lithuania          Decreased recognition rate in 2009:
       Granted asylum        Rejected       Better situation in countries of
                                            origin or worse situation in
 250    247                                 countries of asylum?
 200             196
                                            Usually economic reasons exist
 150                                        in cases where:
                                126
                                  107      costly outcome is possible (e.g.,
 100
                                            free legal aid, asylum for big
  50       34                               influxes, social integration
                        23                  support)
   0
       1st half 1st half 1st half          restrictive interpretation is based
        2007     2008     2009              on weak/contradictory legal
                                            arguments
                                                                                  3
EU asylum law developments
1st generation asylum documents         2nd generation asylum documents
     (till 2005):                            (Commission proposals in
                                             2008-2009):
    Reception Conditions Directive
    Qualification Directive                Commission has already
    Procedures Directive                    proposed amendments for
                                             Reception Conditions Directive
                                            will still propose amendments
                                             for Qualification Directive and
                                             Procedures Directive
1.   Adopted by Council, acting
     unanimously, after consultations   1.   Adopted by Council acting by a
     with EP                                 qualified majority, in co-decision
2.   Wide margin of discretion for           procedure with EP
     Member States and low level of     2.   Higher degree of harmonisation
     protection to be amended by 2nd         and better standards of
     generation documents                    protection                       4
Amendments for Reception Conditions Directive and Financial Arguments-Employment 1

      Employment in Reception                    Employment in Commission
      Conditions Directive:                      proposal:

     Member States shall determine a           Member States shall ensure that
      period of time, starting from the          applicants have access to the
      date on which an application for           labour market no later than 6
      asylum was lodged, during                  months following the date when
      which an applicant shall not               the application for international
      have access to the labour market.          protection was lodged.
      If a decision at first instance has      Member States shall decide the
      not been taken within one year             conditions for granting access to
      of the presentation of an                  the labour market        for the
      application for asylum and this            applicant, in accordance with
      delay cannot be attributed to the          their national legislation, without
      applicant, Member States shall             unduly restricting asylum
      decide the conditions for                  seekers' access to the labour
      granting access to the labour              market.
      market for the applicant.

                                                                                  5
Amendments for Reception Conditions Directive and Financial Arguments-Employment 2



   Commission financial impact assessment:
    the envisaged intervention regarding shortening time constraints for
    access to the labour market could achieve savings for Member States. This
    could be attributed to the fact that asylum seekers would be more self-
    sufficient therefore additional welfare assistance would be avoided.
    Moreover they would contribute to Member States' fiscal systems through
    labour taxation.

   Such assessment would have been more persuasive during the period of
    economic growth when unemployment was not a big problem. Council
    seems to look for not so liberal provision or retain existing provision.

   EP agrees with Commission proposal.



                                                                               6
Amendments for Reception Conditions Directive and Financial Arguments-Subsistence 1

    Material reception conditions and health         Material reception conditions and health care
    care in Reception Conditions Directive:          in Commission Proposal:

                                                    In calculating the amount of assistance to be
   Member States shall make provisions on           granted to asylum seekers Member States shall
    material reception conditions to ensure a        ensure that the total value of material reception
    standard of living adequate for the health       conditions to be made available to asylum
    of applicants and capable of ensuring            seekers is equivalent to the amount of social
    their subsistence.                               assistance granted to nationals requiring such
                                                     assistance. Any differences in this respect shall
                                                     be duly justified.

   Member States shall provide necessary           Member States shall provide necessary
    medical or other assistance to applicants        medical or other assistance to applicants who
    who have special needs.                          have special needs, including appropriate
                                                     mental health care when needed, under the
                                                     same conditions as nationals.
   Member States shall take into account           Member States shall establish procedures in
    the specific situation of vulnerable             national legislation with a view to identifying,
    persons such as minors, unaccompanied            as soon as an application for international
    minors, disabled people, elderly people,         protection is lodged, whether the applicant has
    pregnant women, single parents with              special needs and indicating the nature of such
                                                     needs. Member States shall ensure support for
    minor children and persons who have              persons with special needs throughout the
    been subjected to torture, rape or other         asylum procedure and shall provide for
    serious forms of psychological, physical         appropriate monitoring of their situation.
    or sexual violence.
                                                                                                        7
Amendments for Reception Conditions Directive and Financial Arguments-Subsistence 2

   Commission financial impact assessment:
    financial efforts would be required in order to comply with the new Directive, with regard
    to:
    – material reception conditions in view of aligning their policies with the benchmarks set out
    in the new Directive;
    – treatment of vulnerable persons, in view of establishing at national level mechanisms for
    identifying special needs;
    – ensuring access to health care for vulnerable persons under the same conditions applicable
    for nationals.

   Council seems to be against, because considered it difficult to calculate equivalence between
    the different forms of reception conditions that exist and social assistance. Moreover, argued
    that in some cases reception conditions are better than social assistance even though the total
    value is lower than the amount of social assistance. In addition, questioned in principle the
    case for providing equivalent treatment to asylum seekers and nationals. Furthermore,
    opposed the provision because of the resulting costs. Also expected the provision to result in
    discrimination of own nationals and long term residents. Asked whether a differentiation
    amongst asylum seekers would need to be made, for older asylum seekers in order to receive
    equivalent conditions as retired people. Considered health care provision difficult to apply in
    the light of existing waiting lists for medical or other assistance. Found that the provision
    gave too much importance too establishing a procedure for identifying special needs, etc.

   EP does not object against the mechanisms for identifying special needs, but objects against
    material conditions and health care of the same level as for nationals.                      8
    Amendments for Reception Conditions Directive and Financial Arguments-Detention 1
      There are no safeguards against detention in Reception Conditions Directive;
      safeguards against detention in Commission Proposal:

     Member States shall not hold a person in detention for the sole reason that he/she is an
      applicant for international protection. Member States shall ensure that rules dealing with
      alternatives to detention, such as regular reporting to the authorities, the deposit of a financial
      guarantee, or an obligation to stay at a designated place, are laid down in national legislation.
     The continued detention shall be reviewed by a judicial authority at reasonable intervals of time
      either on request by the asylum seeker concerned or ex officio.
     Member States shall ensure access to legal assistance and/or representation in cases of detention
      that shall be free of charge where the asylum seeker cannot afford the costs involved.
     Member States shall not detain asylum seekers in prison accommodation. Detention shall only
      be carried out in specialised detention facilities. Asylum seekers in detention shall be kept
      separately from other third country nationals who have not lodged an application for
      international protection unless it is necessary to ensure family unity and the applicant consents
      thereto.
     Where minors are detained they shall have the possibility to engage in leisure activities,
      including play and recreational activities appropriate to their age. Detained families shall be
      provided with separate accommodation guaranteeing adequate privacy. Where female asylum
      seekers are detained Member States shall ensure that they are accommodated separately from
      male asylum seekers, unless these are family members and all concerned individuals consent
      thereto. Where persons with special needs are detained Member States shall ensure regular
      monitoring and adequate support.
                                                                                                       9
Amendments for Reception Conditions Directive and Financial Arguments-Detention 2



   Commission financial impact assessment:
    ensuring that detention is applied only in exceptional cases would also result in
    savings for Member States; due to the high number of staff employed in detention
    centres in order to meet security requirements, detention policies could prove
    more costly than accommodating asylum seekers in open reception centres.

   Council seems to be strongly against such safeguards, because considered that
    such safeguards can hardly be applied in practice. Indicated that asylum seekers
    should not be accorded more rights as regards financial contributions to legal
    assistance and/or representation than available to nationals. requested to make this
    paragraph more flexible. In this context, proposed to add "Insofar as possible,
    asylum seekers…". Argued that asylum seekers can sometimes be in prison for
    reason of being a danger to themselves; specific accommodation in such cases
    would entail high costs, etc.

   EP mostly agrees with Commission proposal.


                                                                                       10
Procedural challenges

  According to 2008-06-17 Asylum Policy
  Plan the amendments to the Procedures
  Directive (to be proposed in 2009) will
  primarily aim at:

  – setting up of a single, common asylum      Single procedure for refugee status and
  procedure leaving no space for the            subsidiary protection is less expensive
  proliferation of disparate procedural         than two separate procedures and is
  arrangements in Member States, thus           already introduced by the majority of
  providing for a comprehensive                 Member States. Therefore such
  examination of protection needs under         amendment is realistic.
  both the Geneva Convention and the
  EU's subsidiary protection regime.

  – establishing obligatory procedural         Free legal aid starting from the first-
  safeguards as well as common notions          instance procedure is discussed as one of
  and devices, which will consolidate the       the most important safeguards, but it is
  asylum process and ensure equal access        very expensive and Member States tend
  to procedures throughout the Union.           to limit its scope. Therefore such
                                                amendment is not realistic.

                                                                                          11
Qualification challenges
According to 2008-06-17 Asylum Policy Plan
the amendments to the Qualification Directive
(to be proposed in 2009) will primarily aim at:

– amend the criteria for qualifying for
international protection under this Directive.         Today Member States use flexible eligibility
To this effect, it may be necessary inter alia to       conditions for subsidiary protection and
clarify further the eligibility conditions for          other national types of protection status in
subsidiary protection, since the wording of the         order to control their recognition rates.
current relevant provisions allows for                  Harmonisation of higher standards and
substantial divergences in the interpretation           decreasing Member States margin of
and the application of the concept across               discretion might significantly increase
Member States. A study will be launched on              numbers of beneficiaries of international
the possible alignment of national types of             protection. Therefore such expensive
protection status which do not currently fall           amendment is not realistic.
under the EU's regime of international
protection.

– reconsider the level of rights and benefits to       In many Member States beneficiaries of
be secured for beneficiaries of subsidiary              subsidiary protection are entitled only to
protection, in order to enhance their access to         core benefits while refugees receive social
social and economic entitlements which are              assistance of the same level as nationals. As
crucial for their successful integration.               more social rights for beneficiaries of
                                                        subsidiary protection would cost much, such
                                                        amendment is not realistic.              12
Conclusions

   Starting from Amsterdam Treaty and Tampere
    Conclusions, the EU asylum law is gradually
    increasing degree of harmonisation and standards of
    protection.
   However, 2nd generation directives, which had very
    high protection ambitions, most likely will face the
    stronger resistance of Member States because of the
    financial crisis and will not achieve the aims
    foreseen before the financial crisis.
                                                           13

				
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